Communication and the Internet What You (and Others) Say May Be Used Against You in a Court of...

Mercer Law School 1

Communication and the Internet

What You (and Others) Say May Be Used Against You in a Court of Law…

David HricikMercer Law School

Mercer Law School 2

Coverage

Papers• Linking to and from law firm

web sites• Social networking sites• Unsolicited e-mail and voice-

mail• Adventures in e-mail• Informal investigations on

the internet• Web tracking• Metadata

Presentation• Linking

• Social networking

• Informal investigations• Adventures in e-mail

• Web tracking• Metadata – recipient duties

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Linking to and From Websites

Keep the materials in mind when we address social networking sites….

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Linking: A Building Block for Understanding Social Networking Sites

Linking to Lawyer’s Page• Is the lawyer responsible for

statements made by third parties that the lawyer could not ethically make?

• If so, what should you do?

Linking From Lawyer’s Page• Can you link to a site that

says something that you could not ethically say?

• If not, what should you do?

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Are You Your Clients’ and Friends’ and Everyone Else’s Keeper?

• When a third party links to a lawyer’s site and the lawyer is aware of the link, what obligations does he have?

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The Bar Opinions So Far

• Bare links with no description or commentary– Fine

• Third party makes comments that the lawyer ethically could make– Fine

• Third party makes statement lawyer could not make:– Unethical if lawyer

induced or otherwise assisted third party in effort

– Unethical if payment made

– What if lawyer not involved at all?

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Independent Third Party Links

Why it should be okay• Third party’s 1st Am. Rights• Third party not bound by

lawyer ethics rules• Third party not induced by

lawyer so lawyer not violating rule

Why it might not be• Client linkers

• Non client linkers

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Client Linkers: OH & SC Opinions

Step One• Lawyer should “counsel”

the client about any omission or error

Step Two• If client refuses to make

change, lawyer should “give consideration to withdrawal.”

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Nonclient Linkers: No Opinion, Yet

There is no Step One• Can’t “counsel” non-clients

because of Rule 4.3

There is no Step Two• Can’t seriously consider

withdrawal because there is nothing to withdraw from.

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The Flip Side?

• Can a firm gratuitously post something on its webpage and link to another lawyer that would violate the ethical rules if made by that lawyer?– If the information is negative and confidential?• One opinion: yes.

– If it’s praise?• Same issues as third-party posts; firm has 1st Am. rights

and rules don’t seem to be violated, but risky.


What to Do

• Obviously the firm needs to (and presumably does) have a policy in place about what it links to.

• If you become of a link to the firm’s site that concerns you, raise it with firm.


Social Networking Sites

“Linking” issues and more


What is a social networking site?

• Classmates• Facebook• LinkedIn• Plaxo• MySpace• Probably a ton more.


What Some Allow

• You can post status about what you’re doing• You can read your “friends’” status• You can “recommend” people, and they can

recommend you – and this information is posted.

• You can find out whether someone you know knows a particular person

• You can search for people, expertise, etc.


The Good and the Bad

The Bad• Potential problems much

like linking, and beyond

The Good• Potential ways to investigate

opposing counsel, witnesses, and third parties


The Bad: What You Write

• All information relating to the representation of a client should be treated in confidence.– Internet is one big elevator– Avoid posting or twittering about client matters– Some judges have banned posting during trial


The Bad: What You Write

Static Social Network Page• Advertising rules likely apply.

– No false or misleading statements, including comparisons that can’t be substantiated

– If you “invite” e-mail or contact about a problem, special issues

• State law tort claims likely apply to disparaging statements

Interactivity• Potential for:

– Embarrassment– State law tort claims– Improper solicitation in person

solicitation• Chat

– Potential for improper “targeted” mailing• E-mail

– Potential for UPL– Potential for inadvertent

conflicts and attorney client relationships


Your Musings

On-Line Posts are Not Private and OralInteractions: Conflicts of Interest

and Liability


Embarrassment

• Lawyer wrote on blog that judge was an “evil, unfair witch.”– Reprimand and fined

• Lawyer posted about her boss, “Judge Clueless”– Lost job of 19 years

• Judge Kozinski posted “art” on his site– Google it.

• Judge communicated with friend-defense counsel through Facebook and Googled plaintiff.– Reprimanded


The Flip Side?

• Can something you say about a lawyer be used against you?– If the information is negative and confidential?• One opinion: yes.

– If it’s praise?• Same issues as third-party posts; firm has 1st Am. rights

and rules don’t seem to be violated, but risky.


Pre-AC Disqualification: Rule 1.18

Rule 1.18 & Common Law• A person who in good faith

discusses forming an AC relationship gets many of the same protections as a former client

The Risks• You could receive

information that could disqualify your firm from a representation


Providing Legal Advice

UPL• Going much beyond

generalized legal discussion risks UPL– Low risk– No precedent

Forming AC Relationships• Giving legal advice can

create attorney client relationships– Liability

• Togstad– Conflicts


Improper Solicitations

Asynchronous E-mail• Targeted e-mails are

generally viewed as letters so must comply with those rules– “Advertisement”

Synchronous• May be treated as in-person

solicitation and so prohibited, unless fall into narrow exception• Chatrooms– Blogging/posting at same

time as third party


Static Third Party Posts

South Carolina Opinion• You may solicit

endorsements that comply with state ethics rules as if you made them– You cannot solicit improper

endorsements or recommendations

South Carolina Opinion• You should not “allow

publication of” improper testimonials.– How do you do this?

• Client• Nonclient


Much Like the Linking Opinions

• Bare mention with no description or commentary– Fine

• Third party makes comments that the lawyer ethically could make– Fine

• Third party makes statement lawyer could not make:– Unethical if lawyer

induced or otherwise assisted third party in effort

– Unethical if payment made

– What if lawyer not involved at all?


Some Kind Words About a KLG Lawyer


Is LinkedIn Just a Link?

• If so, must you stop unethical recommendations?


The Good

Social Networking Sites are Great Resources for Investigating Others


Suppose They’ve Hired an Expert…


How Can I Learn More?


Limitations on Investigations

• Oregon website opinion– 4.2: No ex parte contacts– 4.3: Fair to unrepresented persons

• Facebook Opinion from Pennsylvania– 8.4: no dishonesty


And Remember

• If you can investigate them, they can investigate you.


What to Do

• Remember the persistence of posts and assume they are public and permanent

• If third party posts concern you, consider what you can do

• Let your clients know that social networking sites can be used against them

• Remember that ethical rules apply on-line, too


Adventures in E-mail

• Misdirection: auto-fill and other errors• Mobile lawyers: which law applies to privilege

waiver?• Clients using third party computers to email

lawyers– Protecting your clients– Investigating opposing parties


Misdirection

• Ripped from today’s headlines…

• It still happens to the best of us


Privilege Waiver

• Misdirection: in some states, misdirection waives privilege even if inadvertent and despite reasonable care.

• Traveling lawyers beware!


Third Party Computers and E-mail

The Issue• If a client e-mails her lawyer

by using a computer owned by her employer who has effective policies in place stating that e-mails are not confidential, is privilege waived?

The Resolution• Multi-factor test being used


Third Party Computers

• Three issues from one problem:– Protect your litigation clients– Consider if opponent waived privilege by using

third party computers• Waiver even if your client doesn’t own the computer?

– Ensure your transactional clients have good policies in place

No Privilege Maybe Privilege

Policy clear?Does policy allow for exceptions?

Was employee assured it was “just” policy?

Was policy strictly enforced?

Was enforcement sporadic or ad hoc?

Was there in fact no monitoring?

Did third parties have unrestricted

access?

Did third parties have limited access,

or subject to confidentiality?

Was content protected from third

parties?

Splash screen?Signed by employee?

Not clear employee even knew of it?

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What to Do

• Forward, reply to all, reply…• Be sure your clients are not waiving privilege• Advise your clients to adopt policies and

procedures that meet the developing guidelines• Check whether opposing parties are using third

party computers– Cases so far involve employer v. employee disputes– But no apparent reason why waiver would not apply

as to third parties.


Tracking

• Wired Magazine reports that Adobe Flash (ubiquitous) allows for gathering of substantial personal information!


Metadata

Here, IT Takes Care of it…

What About

• Your client

• Your home computer

• Your pda…

• There will be mistakes…

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Recipient’s Duties

• Is transmission of metadata in a file like inadvertently faxing a privileged document?

– If so, then rules and bar opinions that require notifying the sender of the

inadvertent transmission apply


The Metadata Divide

• Bar associations disagree on– whether the recipient can look to see if

metadata is there;– whether the recipient has to notify the

sender of its presence;– whether the recipient-lawyer, or her

client, decides what to do about receiving metadata.


Rule 8.4

• It is professional misconduct to engage in conduct involving “dishonesty, fraud, deceit or misrepresentation.”

• Is it “dishonest” to look for metadata?


Model Rule 4.4(b) & Opinions

MR 4.4(b): “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Whether lawyer must follow sender’s instructions is a matter beyond the scope of the rule.

Most states: No adoption of 4.4(b), and no opinion.

DC 4.4(b): “A lawyer who receives a writing relating to the representation of a client and knows, before examining the writing, that it has been inadvertently sent, shall not examine the writing, but shall notify the sending party and abide by the instructions of the sending party regarding the return or destruction of the writing”

Can You Look for Embedded Data? Must You Notify?

NY

• Dishonest to look • Notify of receipt

FL

• Can’t look; Dishonest? • Notify of receipt

Ala• Dishonest to look • Notify of receipt

MD• Can view and use

VT• Can view (must view?)• Notify if should know

inadvertentDC

• Weird approach

PA• Facts & Circs to both questions

West Va:• Maybe can’t look• Notify if actually know

inadvertentMaine• Can’t Look• Must Notify

ABA• Can look • Notification undecided

What about…• Your State?• Federal court?



Who Decides?

• The comments to Model Rule 4.4(b) say that, although the lawyer must notify the sender, whether the lawyer must follow the sender’s instructions is not addressed by the rules.

• Is it your call, or your client’s as to what to do?

• Can you act without talking to your client?– Do you do so at your peril?– Can you reject your client’s decision to use the

document?


Two Stories: Any Lesson?

• How should a lawyer respond to an opponent’s transmission of embedded data?

–Microsoft story

– Vince P’s story


Thank You

[email protected]

mailto:[email protected]

http://www.hricik.com/

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